Just ahead: A debate over risque billboards

Traffic makes its way north on I-75 as it passes a Cafe Risque billboard Friday afternoon, July 19, 2013. The Marion County Commission wants to amend the Land Development Code to prevent new billboards (existing ones are grandfathered in) that violate "community standards."

Published: Sunday, July 21, 2013 at 10:56 p.m.

Last Modified: Sunday, July 21, 2013 at 10:56 p.m.

The County Commission has directed its legal staff to determine whether it can outlaw sexually suggestive billboards for adult entertainment businesses without running afoul of the First Amendment.

The issue emerged during the commission’s recent hearings on the revamped Land Development Code.

At the concluding session on July 11, the board acknowledged a complaint that had been made at a previous hearing by a resident concerned about billboards for Cafe Risque, a Micanopy strip club just north of the Marion County-Alachua County line.

Commissioners conceded that as of now they were powerless to shield travelers from the provocative billboards, which recently have been toned down.

The board’s hope was to block imitators.

“We can make sure no new ones are erected, and I’m fine with that,” Chairwoman Kathy Bryant said at the meeting.

“We know that we can’t do anything about the ones that are already there, but we would like to push for not allowing any more. That’s the direction we really want to go.”

Asher Sullivan III, owner of Cafe Risque, said, “It doesn’t sound like it’s going to affect me, so they can do whatever they want.

“I hope their lawyers are smart,” he added. “If it was that easy everybody would’ve already done it. They (local governments) have been sued and lost.”

The proposed billboard ban would be in line with the county’s already dim view of the sex industry. The land code, for example, acknowledges that strip clubs, adult bookstores and novelty shops are practicing businesses permitted to operate within the state. Yet the code also paints them as a menace.

Where adult entertainment businesses are present, other “illegal, immoral, or unhealthful activities tend to concentrate around and be aggravated by (their) presence,” the code states.

Those vices include prostitution, lewd and lascivious behavior, drug sales, distribution of obscene materials and violent crime, according to the code, whose provisions governing adult entertainment were enacted in April 1996.

“Based upon evidence and testimony from the County’s professional planners, the grouping together of the activities described above lowers property values, detracts from the aesthetic beauty of residential, commercial and institutional neighborhoods and is harmful to juveniles who congregate in such residential and institutional areas,” it adds.

In reviewing the code, members of the Land Development Regulation Commission were wary of making regulatory changes for adult entertainment businesses because of the potential legal challenges.

Still, one restriction was incorporated into the revised land code, which takes effect in October. Adult entertainment businesses must sit at least 1,500 feet away from each other as well as from churches, schools, playgrounds or parks, or residential areas. The current mandate is 1,000 feet.

Sam Martsolf, the county’s planning and zoning director, said as of now no adult entertainment businesses have obtained the required permit to operate in unincorporated Marion.

On the sign issue, County Attorney Guy Minter cautioned commissioners in a memo about treading into a “legal minefield.”

Most local governments regulate sex-based advertising by targeting technical aspects — such as size or placement of the signs — and not their content, Minter wrote.

St. Lucie County was a lone exception, according to his report.

Officials there have banned signs displaying any “written or graphic message” that is deemed lewd, lascivious, or obscene, as based on “contemporary community standards.”

Despite that, Minter’s reluctance to green-light the commission to pursue tougher regulations was based partly on a legal brawl from Gainesville.

In 1983, Steve Solomon, owner of Leonardo’s Pizza in Gainesville, challenged a city ordinance that prohibited signs considered obscene or immoral.

According to court records, the pizzeria’s logo was a “modified version” of Leonardo da Vinci’s famous illustration “Proportions of the Human Figure,” which had been in place at the restaurant since 1974.

The city won the first round, but when Solomon appealed, the U.S. 11th Circuit Court of Appeals in Atlanta ruled that the city overstepped its First Amendment boundary.

Gainesville’s ordinance, the court’s June 1985 ruling said, was “facially unconstitutional because of overbreadth and vagueness.”

The appellate judges held that the law’s major fault was its “broad, undefined terms” that failed to differentiate between speech that is protected under the First Amendment and speech that is not.

Minter wrote that while the U.S. Supreme Court has determined that “community standards” can prevail, the decision in Solomon’s case meant the St. Lucie County law likely would not survive a legal challenge.

“It is necessary to exercise caution in adopting legislation impacting First Amendment protections because if the government loses a challenge, it will be liable for the plaintiff’s attorney’s fees,” Minter explained to the board.

“Given the types of images depicted on the covers of ‘mainstream’ magazines on sale at the checkout lines of local supermarkets, including, for example, the annual swimsuit edition of Sports Illustrated, it is unlikely that the content of the billboards as to which the Board has received complaints would be deemed ‘obscene’ and thus prohibited” by the local law in St. Lucie County or the revised sign ordinance in Gainesville, Minter added.

<p>The County Commission has directed its legal staff to determine whether it can outlaw sexually suggestive billboards for adult entertainment businesses without running afoul of the First Amendment.</p><p>The issue emerged during the commission's recent hearings on the revamped Land Development Code.</p><p>At the concluding session on July 11, the board acknowledged a complaint that had been made at a previous hearing by a resident concerned about billboards for Cafe Risque, a Micanopy strip club just north of the Marion County-Alachua County line.</p><p>Commissioners conceded that as of now they were powerless to shield travelers from the provocative billboards, which recently have been toned down.</p><p>The board's hope was to block imitators.</p><p>“We can make sure no new ones are erected, and I'm fine with that,” Chairwoman Kathy Bryant said at the meeting.</p><p>“We know that we can't do anything about the ones that are already there, but we would like to push for not allowing any more. That's the direction we really want to go.”</p><p>Asher Sullivan III, owner of Cafe Risque, said, “It doesn't sound like it's going to affect me, so they can do whatever they want.</p><p>“I hope their lawyers are smart,” he added. “If it was that easy everybody would've already done it. They (local governments) have been sued and lost.”</p><p>The proposed billboard ban would be in line with the county's already dim view of the sex industry. The land code, for example, acknowledges that strip clubs, adult bookstores and novelty shops are practicing businesses permitted to operate within the state. Yet the code also paints them as a menace.</p><p>Where adult entertainment businesses are present, other “illegal, immoral, or unhealthful activities tend to concentrate around and be aggravated by (their) presence,” the code states.</p><p>Those vices include prostitution, lewd and lascivious behavior, drug sales, distribution of obscene materials and violent crime, according to the code, whose provisions governing adult entertainment were enacted in April 1996.</p><p>“Based upon evidence and testimony from the County's professional planners, the grouping together of the activities described above lowers property values, detracts from the aesthetic beauty of residential, commercial and institutional neighborhoods and is harmful to juveniles who congregate in such residential and institutional areas,” it adds.</p><p>In reviewing the code, members of the Land Development Regulation Commission were wary of making regulatory changes for adult entertainment businesses because of the potential legal challenges.</p><p>Still, one restriction was incorporated into the revised land code, which takes effect in October. Adult entertainment businesses must sit at least 1,500 feet away from each other as well as from churches, schools, playgrounds or parks, or residential areas. The current mandate is 1,000 feet.</p><p>Sam Martsolf, the county's planning and zoning director, said as of now no adult entertainment businesses have obtained the required permit to operate in unincorporated Marion.</p><p>On the sign issue, County Attorney Guy Minter cautioned commissioners in a memo about treading into a “legal minefield.”</p><p>Most local governments regulate sex-based advertising by targeting technical aspects — such as size or placement of the signs — and not their content, Minter wrote.</p><p>St. Lucie County was a lone exception, according to his report.</p><p>Officials there have banned signs displaying any “written or graphic message” that is deemed lewd, lascivious, or obscene, as based on “contemporary community standards.”</p><p>Despite that, Minter's reluctance to green-light the commission to pursue tougher regulations was based partly on a legal brawl from Gainesville.</p><p>In 1983, Steve Solomon, owner of Leonardo's Pizza in Gainesville, challenged a city ordinance that prohibited signs considered obscene or immoral.</p><p>According to court records, the pizzeria's logo was a “modified version” of Leonardo da Vinci's famous illustration “Proportions of the Human Figure,” which had been in place at the restaurant since 1974.</p><p>The city won the first round, but when Solomon appealed, the U.S. 11th Circuit Court of Appeals in Atlanta ruled that the city overstepped its First Amendment boundary.</p><p>Gainesville's ordinance, the court's June 1985 ruling said, was “facially unconstitutional because of overbreadth and vagueness.”</p><p>The appellate judges held that the law's major fault was its “broad, undefined terms” that failed to differentiate between speech that is protected under the First Amendment and speech that is not.</p><p>Minter wrote that while the U.S. Supreme Court has determined that “community standards” can prevail, the decision in Solomon's case meant the St. Lucie County law likely would not survive a legal challenge.</p><p>“It is necessary to exercise caution in adopting legislation impacting First Amendment protections because if the government loses a challenge, it will be liable for the plaintiff's attorney's fees,” Minter explained to the board.</p><p>“Given the types of images depicted on the covers of 'mainstream' magazines on sale at the checkout lines of local supermarkets, including, for example, the annual swimsuit edition of Sports Illustrated, it is unlikely that the content of the billboards as to which the Board has received complaints would be deemed 'obscene' and thus prohibited” by the local law in St. Lucie County or the revised sign ordinance in Gainesville, Minter added.</p><p><i>Contact Bill Thompson at 867-4117 or bill.thompson@starbanner.com</i></p>